MUHAMMAD SAIR ALI, J.--- Through this civil revision petition has challenged judgment and decree dated 18.12.2002 passed by learned Addl. Districi Judge, Gujrat whereby he while accepting the appeal of responder, remanded the case in reversal of me judgment and decree dated 16.-1.1997 of learned Civil Judge, Guji at decreeing the suit of Muk-1- mad Nawaz petitioner against respondent barkat A.I.
2. Muhammad Nawaz petitions: filed a suit for specific performance of agreement dated 17.1.1P8.
Co,.-issuing written statement v'.'e submitted by the respondent Barkat A.I (defendant). Divergence of pleadings led to framing of issues. Petitioner produced PW-1, PW-2, PW-3, PW-4 as witnesses and himself Pnneared as PW-5 and also produced documentary evidence before learred Trial Court.
The learned Civil Judge, thereupon, granted repeated opportunities to the respondent/defendant for producing evidence. On each date, respondent sought adjournment. Learned Trial Court, thereupon, closed respondent's right to produce evidence through order dated 8.7.1998 in exercise of powers under Rule 3 of Order XVII, CPC. Learned Civil Judge then adjourned the' case to 12.7.1997 and form 12.7.1997 to 16.7.1997, when petitioner's suit was decreed by learned Civil Judge.
Respondent filed an appeal . Learned Addl. District Judge, Gujrat accepting the appeal, reversed the abovesaid judgment and decree and remanded the case to the learned Civil Judge for recording respondent's evidence and re-decision of the case. Hence the present 'civil revision.
3. Learned counsel for the petitioner contended that judgment dated 18.12.2002 of learned Addl.
District Judge was passed contrary to the settled principles of law regarding value attached to the orders of a learned Court as against the affidavit of Ch. Sikandar Hayat, Advocate presented before the learned first Appellate Court by the respondent to show that on 19.2.1997, the case was infact adjourned to 30.7.1997 and that Ch. Sikandar Hayat, Advocate for the respondent in the Trial Court, did not at all appear before the learned Trial Court on intervening dates of 15.5.1997, 10.6.1997, 8.7.1997, 12.7.1997, 16.7.1997. And that proceedings as recorded by learned Civil Judge were incorrect. Learned counsel for the petitioner further contended that learned Addl.
District Judge completely ignored the orders passed by learned Civil Judge. Hence the order of learned Addl. District Judge suffered from material irregularity and that he exceeded his jurisdiction.
Contrarily, learned counsel for the respondent supported the impugned judgment by stating that no counter-affidavit was filed by either the petitioner or his learned counsel before the learned first Appellate Court to rebut the contents of affidavit of Ch. Sikandar Hayat, Advocate. He thus claimed that in absence of a counter-affidavit, the contents of affidavit were to be accepted as correct. He also read out the impugned judgment to state that three proceedings were recorded by the Reader and subsequent three proceedings were recorded by learned Civil Judge and that the proceedings recorded by the Reader had no value and could not be relied upon.
4. I have heard the learned counsel for the parties and have also examined the record. This case appears to have been peculiarly dealt with by learned Addl. District Judge, Gujrat. He opted to believe and rely upon the affidavit of learned counsel (Ch. Sikandar Hayat, Advocate) of the respondent as against the orders and proceedings recorded in the Trial Court. The main thrust of the judgment of learned Addl. District Judge appears to be that first three orders of adjournment were written by reader, who referred to sole defendant/respondent in the case as defendants. And that petitioner had thus connived with the Reader 01 the Court to create record for closure of evidence and to obtain a decree in his favour.
5. The sequence of events of the story begins from 19.2.1997 and ends on 16.7.1997 upon the impugned judgment and decree by learned Civil Judge. For the purposes of record and perspective of the case, I believe that proceedings prior to 19.2.1997 are also important on the question of opportunities granted to the respondent for presenting his evidence.
6. After framing of issues, petitioner as plaintiff completed his evidence on 6.3.1996, whereon the case was adjourned to 18.3.1996 for evidence of the defendant (though wrongly recorded as defendants by the learned Civil Judge). On 18.3.1996, evidence was not available, hence adjournment was sought by the respondent. On the adjourned date of 21.3.1996, learned Civil Judge was on leave. So the case was fixed for 26.3.1996, on which date again evidence of the respondent was not presented and adjournment was sought. Last opportunity was granted. On this adjourned date of 2.4.1996, learned Civil Judge was not available, wherefor, the case came-up before the Court on 7.4.1996 when it was adjourned to 12.5.1996 on request of the respondent defendant for his evidence. On 12.5.1996, adjournment was again granted to the respondent on his request for evidence. On 25.6.1996, part evidence of the respondent was recorded and the case was adjourned for remaining evidence to '30.7.1996, when on request of the respondent, the ease was adjourned to 9.10.1996. On this date also defendant's evidence was not present like on further adjourned dates of 20.11.1996, 18.12.1996 and 19.2.1997 which were all fixed for respondent's evidence on his request.
7. As recorded above, the fiction, as contrived by the respondent through affidavit of Ch. Sikandar Hayat, Advocate commences from 19.2.1997 when, as per affidavit, suit was adjourned to 27.7.1997.
But order sheet shows that on 19.2.1997, learned counsel for the parties were present but evidence of the respondent was not available. The case was thus adjourned on the request of respondent's learned counsel (Ch. Sikandar Hayat, Advocate) for evidence on 30.3.1997. In the proceedings recorded against 30.3.1997, both the learned counsel for the 'parties were shown to be present but owing to holiday on 30.3.1997, the case was adjourned to 15.5.1997. As jointly explained and clarified by the learned counsel for the parties before this Court that the proceedings against the date of 30.3.1997 were recorded on the next working date because of declaration of holiday on 30.3.1997.
On the adjourned date of 15.5.1997, as per the order sheet, the learned counsel for the parties were present and the learned counsel for the respondent himself requested for adjournment whereupon the case was adjourned to 10.6.1997 owing to non-availability of respondent's evidence. Again on 10.6.1997, the learned counsel for the parties were recorded to be present but for absence of respondent's evidence and on his counsel's request, the case, upon cast of Rs.200/-, was adjourned to 8.7.1997 as the final date for respondent's evidence. It was also specifically recorded by the learned Civil Judge that no further opportunity shall be allowed to the respondent for evidence.
8. On 8.7.1997, presence of learned counsel for the parties was again recorded by the Court. And since respondent failed to produce evidence or to pay the costs, right of respondent to present evidence was closed. The respondent nad also opted to remain absent and his counsel had made request for adjournment on this date. Learned Civil Judge through the impugned judgment and decree dated 16.7.1997 decreed the suit of the petitioner against the respondent.
9. Respondent challenged the above judgment and decree before learned Addl. District Judge, Gujrat through first appeal. Alongwith appeal, affidavit of Ch. Sikandar Hayat, Advocate for respondent in the Trial Court, was affixed. Paras 2, 5 and 6 of the said affidavit being most important to the case of respondent, are reproduced hereunder:-
(2) "That on 19.2.1997 the appellant namely, Barkat All conveyed to the deponent the fact that his case had been adjourned to 30.7.1997 for his evidence and the said date was given to him by the Reader of the Trial Court.
(5) That the deponent did not appear before the learned trial Judge on 15.5.1997, 10.6.1997, 8.7.1997, 12.7.1997 and 16.7.1997 and his presence has been wrongly shown in the record of the Trial Court.
(6) That on 30.7.1997 the appellant brought his witnesses for producing them before the Court, but then it transpired that the suit had been decreed on .16.7.1997."
10. The respondent structured his entire case in appeal on the basis of above-said affidavit to which the learned first Appellate Court attributed a lot of weightage. The case developed by the respondent was that on 19.2.1997, Barkat A.I respondent conveyed the adjourned date of 30.7.1997 to the deponent Advocate as date for respondent's evidence. And the learned Advocate noted the adjourned date of 30.7.1997 in his diary wherefor he did not appear on subsequent dates 15.5.1997, 10.6.1997, 8.7.1997, 12.7.1997 and 16.7.1997. And that he was wrongly marked as present by the learned Civil Judge. Learned Addl. District Judge gave a- lot of credence to the above-referred affidavit.
Also because the proceedings of 19.2.1997, 30.3.1997 and 15.5.1997 were stated to have been written by the Reader and not by the learned Civil Judge himself. And as per the reasoning. Of the learned Addl. District Judge, the Reader consistently referred to sole defendant as defendants. Wherefore, he concluded that petitioner and the Reader had connived to cheat the respondent.
11. The above-referred observations of learned Addl. District Judge though appear to be attractive, cannot stand a minute scrutiny of the sequence of events. Learned Addl. District Judge totally ignored that the deponent i.e. Ch. Sikandar Hayat, Advocate for the respondent did not deny in the affidavit that he appeared before the Court on 19.2.1997 and also did not deny that the case was adjourned to 30.3.1997 on his request owing to non-availability of respondent's evidence.
12. As such when the case was adjourned to 30.3.1997 on request and in presence of the learned counsel himself, there was no occasion or reason for Barkat A.I respondent to convey to the deponent the adjourned date of 30.7.1997 and for deponent to enter this date in his diary. The falsehood of the contents of para 2 of the affidavit is thus evident demolishing the basis of the story built in the affidavit.
13. Another important fact over looked by the learned Addl. District Judge, was that even in the proceedings recorded against the date of 30.3.1997, learned counsel for the parties were recorded to be present when the case was adjourned for evidence of the respondent to 15.5.1997.
14. Petitioner or his. Deponent counsel have not challenged these proceedings as wrongly recorded.
The deponent counsel did not deny in the affidavit, his presence in the Court during proceedings of 30.3.1997 or adjournment of case to 15.5.1997 from that date. The proceedings on 19.2.1997 and 30.3.1997 were written by the Reader in presence of the learned counsel for the parties and without any objection form them and had admittedly been signed by the learned Civil Judge himself in the Court. These proceedings therefore should not have been disparaged ur disapproved by the learned Addl. District Judge.
15. In absence of denial of the correctness of proceedings of 19.2.1997 and 30.3.1997 by the respondent or his counsel, the contents of para 5 of the affidavit obviously become too dubious to be accepted. Upon non-denial of appearance in the Court on 19.2.1997 whence the case was put to 30.3.1997 when against it was adjourned to 15.5.1997 in presence of the learned counsel, how could it be deposed in para 5 of the affidavit that suit was adjourned to 30.7.1997 and not to 15.5.1997.
Proceedings of 19.2.1997 and 30.3.1997 expose the falsehood and untruth of the affidavit sworn by Ch. Sikandar Hayat, Advocate.
16. In view of his exalted position as lawyer of the respondent, the deponent counsel should have abstained from swearing such an affidavit. Learned counsel had moral and legal duty to conduct himself above-board as a counsel and not become a party in the suit. It is unfortunate that Ch. Sikandar Hayat. Advocate opted to abdicate his high stature of a law advisor to side with the litigant and thus expose himself to controversy.
17. Learned Addl. District Judge should have also examined and inquired into the story of respondent from another angle. As per the affidavit of the learned Advocate, the suit was adjourned on 19.2.1997 for a period of 5 months, 11 days to 30.7.1997. In normal routine of Court business and in absence of extraordinary reasons, cases are not adjourned for five to six months.
This fact alone casts serious doubt on correctness of respondent's stand.
18. Learned Addl. District Judge appears to have committed material irregularity by preferring the contents of above-referred affidavit of Ch. Sikandar Hayat, Advocate to the solemn proceedings recorded by the learned Civil Judge.
19. Proceedings have been defined in Black's Law Dictionary (Sixth Edition) as under:- .................. The form, and manner of conducting juridical business before a Court or judicial officer.
Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like............ a prescribed mode of action for carrying into effect a legal right. All the steps or measures adopted in the prosecution or defense of an action. Stattar v. United States C.C.A. Alaska, 66 F.2d819, 822. The word may be used synonymously with "action" or "suit" to describe the entire course of an action at law or suit in equity from the issuance of the writ or filing of the complaint until the entry of a final judgment, or may be used to describe any act done by authority of a Court of law and every step required to be taken in any cause by either party. The proceedings of a suit embrace all matters that occur in its progress judicially".
All the steps in action or suit to ensure progress of the case for its ultimate adjudication are "legal proceedings" for being backed by due authorization and sanction of law. Such steps and proceedings (referred to as 'case events' in this judgment) include adjournments granted' by a Civil Court under the Provisions of Order XVII of the Civil Procedure Code, 1908.
20. Such adjournment proceedings or case events written, recorded and signed during normal course of business by Hon'ble Judges of the Courts, are therefore sanctimonious and conclusive unless otherwise proved through irrebutable evidence. The value and status attached to the routine proceedings and orders recorded by a learned Civil Judge regarding ordinary case events in a trial, cannot be lightly displaced by production of affidavits alleging proceedings to be wrong.
Allegations of wrong recording of case events involve serious and complex ramifications. If true, it would vitiate the trial and make the Judge presiding over the trial liable to be proceeded against.
To disregard or disbelieve proceedings of the case events as wrongly and falsely recorded by a learned Judge, the appellate or Revision Court must have strong evidentiary basis and profound reasons. The learned Civil Judges and all other learned Judges of subordinate Courts, in my considered opinion, are as worthy of respect and honour in the discipline of justice administration as those of any higher Court. Their orders, judgments, decrees and proceedings can no doubt be judicially and legally examined by Courts of appeal, revision or superintendents. However. Factual allegations of the nature alleged in the present case, should not be lightly accepted to label the proceedings of the Court as wrongly recorded without taking evidence in an inquiry. The present case involved a pure question of fact as to whether the presence and the adjournment requests of Ch. Sikandar Hayat, Advocate were wrongly written in the impugned proceedings. This question could only be decided by the learned Addl. District Judge through evidence which was neither produced by the respondent nor was it ordered by the learned Addl. District Judge.
21. Furthermore, the learned Addl. District Judge disregarded the principles, and provisions of Rules 1, 2 and 3 of Order XIX, CPC, by accepting affidavit of Ch. Sikandar Hayat, Advocate, without his appearance and cross-examination in the Court. It is a rule of prudence as well as a rule of law that an affidavit ipso facto is not admissible in evidence and its contents cannot be accepted ipsi dixit without cross-examination of the deponent. It is immaterial whether a counter-affidavit in the case like this, is filed by the opposite side or not. It is the duty of the Court to call for record, direct cross-examination of deponent and take evidence to form an opinion on the alleged wrong recording of proceedings by the learned Trial Judge.
22. I would with respect refer to observation of Westropp C.J., as quoted from 10-Born. H.C.R. 75 in the case of "Katta R. Venkatesayya and another v. Muhammad Ghouse Saheb" LAIR (31) 1944 Madras 450); that:- "The statement of the Judge, who presides at a trial, whether it be in a criminal or civil case, is, as to what has taken place at the trial, conclusive. Neither the affidavits of bystanders , nor of jurors, nor the notes counsel, nor of short- hand writers are admissible to controvert the notes of statement of the Judge."
The Hon'ble Judge deciding the above-referred case of "Katta R. Venkatesayya and another v.
Muhammad Ghouse Saheb" (AIR (31) 1944 Madras 450), further observed as under:- "The learned Chief Justice proceeded to cite a number of cases, from one of which an extract may be quoted. In (1984) 5 B&Ad. 1081 at p. (1087) = 110 L R. 1092, Taunton J. Made this observation: "The question is whether the affidavits of bystanders are to be admitted, to proved that the Judge, who presided at a trial is guilty of a mistake as to what passed. If such affidavits were now received, it would be the first instance of such a practice, and would produce the greatest injury to the administration of justice."
The learned Advocate for the petitioner has not been able to produce any authority contra. As the statement of the learned Judge as to what happened is conclusive, it necessarily follows that there is no error of jurisdiction in his order."
23. In the case of "Reg. v. Pestonji Dinsha and another", observations of Mag. Ca. Coleride, J. From "Reg. v. Aaron Mellor" (27 LJNS 121) were as under:- "I apprehend that we are bound to give credence to the statement of the Judge, and to take what the Judge so states to be incontrovertibly the fact.
It is suggested this is not a record, but we have no more power of contradicting the statement of a learned Judge reserved for our consideration, than we have the power of contradicting any allegation upon a record", and Martin B. (P.37) says: "We must consider the statement of the Judge as absolute verity, and we ought to take his statement precisely as a record, and act on it in the same manner as on a record of Court, which of itself imports absolute verity."
24. Referring to the above precedents and presumptions under Section 114 of the Evidence Act now Article 129 of Qanun-e-Shahadat Order, 1984, it was observed in the case of "Muhammad Zaman v.
Abdul Ghaffar and 3 others" (PLD 1980 Lah. 582) that:- ""It may be that there may be some exceptional case of 'proved' accidental slips and forgery where a challenge is possible but in the absence of 'conclusive' proof of such erroneous statement, I am of the opinion that the recital in a judgment of a Judicial Officer or an act of recording the statement by a Judicial Officer must be taken to be correct as regards the facts said to have been admitted or conceded before him. To hold otherwise will be to prolong the hearing of case and to drag Judicial officers into unnecessary, vexatious and undignified controversies. The presumption arising from Section 114 of the Evidence Act, as to the legality and correctness of the Court proceedings can only be overturned by exceptionally strong evidence produced by a complainant on the record. Therefore, all Judicial proceedings are presumed to have been duly performed unless the contrary is proved."
25. In the case of "Muhammad Sharif, etc. v. Muhammad Safdar, etc." (1987 CLC 2482) presumption of correctness and conclusiveness was held to attach to judicial proceedings under Article 129 of Qanun-e-Shahadat Order, 1984.
26. In the cases of "Mian Inam Karim and others v. Mirza Israrul Qadir and others" (1983 CLC 1648) and "Ghulam Rasool v. Ch. Din Muhammad" (PLD 1967 Lah. 665), questions of fact, similar to those challenged in the present case, were rejected because of the strong presumption of correctness in favour of judicial and official acts.
27. For the reasons above discussed. I am of the considered opinion that affidavit of the deponent Advocate was inadmissible and could not have been ipso facto relied upon by the learned Addl.
District Judge to upset the conclusive proceedings of case events recorded by the learned Civil Judge in the suit per orders above-referred.
28. Furthermore, the respondent had failed to produce his remaining evidence in the suit despite numerous adjournments allowed on his requests. The learned trial Judge validly exercised his discretion under Rule 3 of Order XVII, CPC to close respondent's right to produce further evidence.
Petitioner had also proved his case through adequate and credible evidence which was duly and properly evaluated and appreciated by the learned Civil Judge to pass a decree in favour of the petitioner.
29. This civil revision is therefore accepted. The impugned judgment dated 18.12.2002 of learned Addl. District Judge, Gujrat is set-aside. Judgment and decree dated 16.7.1997 passed by learned Civil Judge, Gujrat is maintained and restored. Respondent to pay costs throughout. .